United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
1871, Congress passed a law “directed at the organized
terrorism in the Reconstruction South[.]” Chapman
v. Houston Welfare Rights Org., 441 U.S. 600, 610 n.25
(1979); see 42 U.S.C. § 1985. Over a hundred
and forty years later, on August 11th and 12th, 2017, the
Defendants in this lawsuit, including the Ku Klux Klan,
various neo-Nazi organizations, and associated white
supremacists, held rallies in Charlottesville, Virginia.
Violence erupted. Charlottesville residents who suffered
injuries at the rallies, the Plaintiffs, allege that this
violence was no accident. Instead, they allege the Defendants
violated the 1871 Act and related state laws by conspiring to
engage in violence against racial minorities and their
supporters. The Defendants retort that they were simply
engaged in lawful, if unpopular, political protest and so
their conduct is protected by the First Amendment. While
ultimate resolution of what happened at the rallies awaits
another day, the Court holds the Plaintiffs have plausibly
alleged the Defendants formed a conspiracy to commit the
racial violence that led to the Plaintiffs' varied
injuries. Accordingly, the Plaintiffs' claims largely
survive, although one Defendant is dismissed and other claims
are pared down.
opinion addresses one precise question: the legal sufficiency
of the Plaintiffs' allegations that the Defendants
conspired to engage in racial violence. This question comes
before the Court because some of the Defendants have moved
the Court to dismiss the complaint. A motion to dismiss a
complaint tests the legal sufficiency of the allegations to
determine whether the Plaintiffs have properly stated a
claim; “it does not, however, resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). And so
the Court does not today choose between the parties'
competing narratives of what “actually happened”
at the August rallies.
complaint is required to “to provide the
‘grounds' of [their] entitle[ment] to relief,
” but this “requires more than labels and
conclusions[.]” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citations omitted). A court need
not “accept the legal conclusions drawn from the
facts” by Plaintiffs or “accept as true
unwarranted inferences, unreasonable conclusions, or
arguments.” Simmons v. United Mortg. & Loan
Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (quotation
marks omitted). But the Court takes all factual allegations
in the complaint as true and draws all reasonable inferences
in the Plaintiffs' favor. Rubenstein, 825 F.3d
at 212. In sum, a complaint will survive a motion to dismiss
if it contains “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
Summary of Allegations
addressing the complaint, three brief points are necessary.
First, Plaintiffs' complaint is 112-pages long, pushing
the limits of Rule 8(a)'s requirement of a “short,
plain statement.” Fed.R.Civ.P. 8(a). While the Court
will not ask the Plaintiffs to trim their complaint, the
following summary will necessarily leave out some details. To
the extent those details are material to the Court's
analysis, they are discussed later in the opinion. Second,
the complaint frequently uses vague nouns, lumping all
Defendants and all co-conspirators together. Because this
style of pleading raises problems addressed below, the
following summary focuses on allegations that are tied to
specific Defendants. Third, it is important to remember that
the following summary is a recounting of
allegations. While the Court does not repeatedly
state “Plaintiffs allege that Defendant
X did Y, ” this summary should not be
taken as the Court's endorsement of one version of the
Plaintiffs are ten Charlottesville residents who each
allegedly suffered some injury related to the rallies. Their
relationships to the Defendants fall into three general
groups. First, there are those that attended a
counter-protest on the night of Friday, August 11th, 2017. As
discussed more fully below, various Defendants led a
torchlight march at the University of Virginia. At the end of
that march, some Plaintiffs were assaulted. One of these
Plaintiffs was Tyler Magill, who was surrounded and assaulted
by various marchers around a Thomas Jefferson statue. (Dkt.
175 at ¶166). The marchers hurled torches at Magill and
others, sprayed them with pepper spray, and threw other
liquids on them. (Id. at ¶¶169, 173, 174).
He later suffered a “trauma-induced stroke” and
related injuries. (Id. at ¶11). Plaintiff John
Doe, an African-American UVA student, attended the march
where he also was harassed and assaulted. (Id. at
¶13). He suffered various emotional injuries.
(Id. at ¶293). A third Plaintiff, a UVA student
named Natalie Romero, was also surrounded and assaulted at
the statue. (Id. at ¶18).
another group of Plaintiffs was injured when one of the
Defendants, James Fields, drove his car into a crowd of
counter-protestors after the “Unite the Right”
rally on Saturday, August 12th. Plaintiff Romero also falls
into this second group, as she was hit by Fields's car
and sustained subsequent injuries. (Id.). Plaintiff
Marcus Martin, an African-American counter-protestor, was hit
by Fields's car and sustained a broken leg and ankle.
(Id. at ¶17). He pushed his fiancé,
Plaintiff Marissa Blair, out of the way of the oncoming car,
but she too suffered various physical injuries. (Id.
at ¶16). Plaintiff Chelsea Alvarado was also hit by
Defendant Fields's car, and she suffered physical and
emotional injuries. (Id. at ¶19). Plaintiff
Elizabeth Sines, a second year law student, witnessed the
events and suffered severe emotional distress and shock.
(Id. at ¶15). Plaintiff April Muñiz was
close to being hit by the car, and she has been diagnosed
with acute stress disorder and trauma since the event.
(Id. at ¶12).
there are two other Plaintiffs who are more difficult to
classify. Plaintiff Seth Wispelwey is a minister who led an
ecumenical organization called “Congregate” in
non-violent protest. (Id. at ¶¶11, 134).
He was part of a church service across from the torchlight
march on the 11th, was confronted by one of the Defendants
after the torchlight rally, and was assaulted while
counter-protesting on Saturday. (Id. at
¶¶178, 182, 208). The last Plaintiff is Hannah
Pearce. She is a member of Congregation Beth Israel, a
synagogue close to the park where the Saturday rally took
place. (Id. at ¶14). She peacefully protested
throughout the weekend and was subjected to anti-Semitic
harassment. (Id. at ¶¶219-21).
the primary organizers of the Friday and Saturday events were
Defendants Richard Spencer and Jason Kessler. Defendant
Richard Spencer planned the Friday night march and encouraged
his many followers to attend the Saturday rally. (Dkt. 175 at
¶21). Defendant Jason Kessler is a Charlottesville
resident who applied for, and eventually received, a permit
to hold the Saturday rally. (Id. at ¶¶20,
other promoters were Defendants Christopher Cantwell and
Michael Peinovich. Defendant Cantwell attended the events and
faced criminal charges for using pepper spray at the Friday
night march. (Id. at ¶22). Defendant Michael
Peinovich hosts a podcast called The Daily Shoah and was
featured on a promotional poster for the event. (Id.
the individual Defendants who helped plan the events are part
of organizations that are themselves Defendants. Defendants
Andrew Anglin and Robert “Azzmador” Ray run a
website called The Daily Stormer. (Id. at
¶¶25, 27). They used this platform and associated
“book clubs” to promote the events, which Ray
attended. (Id.). The website is owned by an Ohio
limited liability corporation, Defendant Moonbase Holdings,
LLC. (Id. at ¶26).
Vanguard America is a white nationalist group with twelve
chapters across the country. (Id. at ¶24). Many
of its members attended the events. (Id. at
¶¶153, 197). Plaintiffs alleged one of its members,
Defendant James Fields, intentionally drove his car into a
crowd of counter-protesters, killing one individual and
injuring many others. (Id. at ¶23).
organizer was Defendant Eli Mosley. (Dkt. 175 at ¶29).
He is associated with the white supremacist organization
Defendant Identity Evropa. (Id. at ¶¶29,
30). The founder of that organization is Defendant Damigo,
who helped facilitate transportation for the events.
(Id. at ¶28). Defendant Identity Evropa
popularized the “You will not replace us!” chant
that became the protesters' rally cry. (Id. at
¶30). Both Damigo and Mosley attended the events.
Traditionalist Worker Party is a white nationalist
organization, with many members who attended the rallies.
(Id. at ¶33). It is led by Defendant Matthew
Heimbach and Defendant Matthew Parrott. (Id. at
¶¶31, 32). Parrott wrote an account of his
experiences at the Saturday rally, and he described how
multiple Defendants used organized formations of
“shield walls” in “the fight.”
League of the South and two of its leaders, Defendants
Michael Hill and Michael Tubbs, were also involved in the
fighting at the Saturday rally. (Id. at
¶¶34-36). Defendant Tubbs, in particular, led an
organized charge of League of the South members against
Augustus Sol Invictus is a member of Defendant Fraternal
Order of Alt-Knights, which is the “military
wing” of the white nationalist group “Proud
Boys.” (Id. at ¶¶40- 41). He
attended both events. (Id.).
different Ku Klux Klan organizations also participated in
some capacity. Defendant Loyal White Knights of the Ku Klux
Klan organized a previous Charlottesville rally, and then
made various statements celebrating Defendant Fields's
decision to drive his car into counter-protesters.
(Id. at ¶36). Defendant East Coast Knights of
the Ku Klux Klan also attended the previous rally and then
participated in the August 12 rally. (Id. at
National Socialist Movement is a white supremacist
organization that has a “paramilitary” structure.
(Id. at ¶38). Defendant Jeff Schoep, its
leader, attended the rallies and afterwards tweeted that is
was an “honor” to stand with the other
“warriors.” (Id. at ¶37).
Defendants Schoep, Heimbach, and Hill lead Defendant
Nationalist Front, an umbrella organization that includes
many of the aforementioned organizations. (Id. at
Months preceding August 11 and 12th
drew Defendants' attention because of its decision to
change the name of Lee Park, a small park in Downtown
Charlottesville that contains a statue of General Robert E.
Lee, to Emancipation Park in February 2017. (Dkt. 175 at
¶¶47-48). In May 2017, various white supremacist
groups, including some Defendants, led a torchlight march
around the Lee statue. (Id. at ¶50).
“Capitalizing on the perceived success of the May
event, ” Defendant Kessler submitted an application for
a follow-up rally on August 12th. (Id. at ¶55).
In the intervening months, various Defendants came to
Charlottesville for marches and demonstrations. (Id.
at ¶¶56-57). Plaintiff Romero protested one of
these events, a Ku Klux Klan march, and received harassing
phone calls afterwards from a member of the Klan.
(Id. at ¶58).
Planning for the August 11th and 12th rallies
Defendants met together in person for planning purposes at
least a few times. Defendant Spencer and Evan McLaren, a
member of Defendant Identity Evropa, met at the Trump Hotel
in D.C. to organize the rally on an unspecified date. (Dkt.
175 at ¶64). Closer to the rallies, Defendants Cantwell
and Kessler then met on August 9th in Charlottesville to
plan. (Id. at ¶65). Defendants Ray, Cantwell,
Mosley, and purported co-conspirator David Duke had a similar
meeting on August 11. (Id. at ¶66).
more significantly, the majority of the planning appears to
have occurred online. Defendants Kessler and Mosley used an
online program called “Discord” for planning.
(Id. at ¶¶71-73). This “invite
only” platform allowed Defendants and their chosen
invitees to engage in private conversations during the lead
up to the events. (Id. at ¶72). While
Defendants Kessler and Mosley moderated and managed Discord,
many other Defendants participated on the platform, including
Defendants Heimbach, Parrott, Cantwell, Ray, Vanguard
America, Identity Evropa, Traditionalist Worker Party, League
of the South, and Moonbase Holdings. (Id. at
¶¶74, 77). Organizational Defendants were able to
maintain private sub-forums for their own members.
(Id. at ¶77).
on Discord included mundane planning details, racist
“jokes, ” and concrete threats of violence.
Defendant Mosley posted “General Orders” for
“Operation Unite the Right Charlottesville 2.0.”
(Id. at ¶75). Organizers also posted
information about shuttle service information, lodging, and
carpools. (Id. at ¶76). Other corners of
Discord were significantly darker. One user posted a fake
advertisement for a pepper-spray-look-alike called
“Nig-Away, ” described as a “a no-fuss, no
muss ‘nigger killer, '” promised to
“kill on contact” in order to “rid the
area of niggers.” (Id. at ¶111). Another
frequent Discord user asked whether it was “legal to
run over protestors blocking roadways?” (Id.
at ¶239). He clarified he was not joking, “I'm
NOT just shitposting. I would like clarification. I know
it's legal in [North Carolina] and a few other states.
I'm legitimately curious for the answer.”
(Id.). Other Discord users made similar comments
about running over counter-protestors. (Id. at
¶236-41). Elsewhere on Discord, users made it clear they
planned to fight at the events, saying things like
“I'm ready to crack skulls.” (Id. at
¶97). Defendant Kessler told users: “I recommend
you bring picket sign post, shields and other self-defense
implements which can be turned from a free speech tool to a
self-defense weapon should things turn ugly.”
(Id. at ¶ 112). Defendant Vanguard America
instructed its members “to arrive at the rally in
matching khaki pants and white polos, ” with one member
noting that this was “a good fighting uniform.”
(Id. at ¶ 115). Defendant Hill wrote, in a
Defendant League of the South Facebook group, that he wanted
“no fewer than 150 League warriors, dressed and ready
for action, in Charlottesville, Virginia, on 12
August.” (Id. at ¶36). Similar comments
from other Defendants abound.
this planning was ongoing, separate counter-protesters
received permits to hold events in other parks during the
Defendants' rally. (Dkt. 175 at ¶132). Plaintiff
Wispelwey started an organization, “Congregate, ”
to join with interfaith clergy in protesting against racial
inequality and the rally. (Id. at ¶134).
Defendant Kessler advised other attendees about
Congregate's work, allegedly in an attempt to threaten
the organization. (Id. at ¶135). The names of
other counter-protestors were shared over Discord.
(Id. at ¶137).
individuals opposed to the “Unite the Right”
rally also prepared. Plaintiff Pearce's temple,
Congregation Beth Israel, moved its Torah scrolls off site in
advance of the rally and changed the time of its normal
Shabbat services. (Id. at ¶¶138-39).
Stores around town put signs up supporting diversity and
equality. (Id. at ¶140). Defendants Kessler,
Mosley, Spencer, and Peinovich shared the names and addresses
of these businesses, allegedly in an attempt to have
attendees intimidate them. (Id. at ¶141). Some
of these businesses received various threats. (Id.
The march on August 11th
Mosley, Spencer, Kessler, Ray, Anglin, Cantwell, and Invictus
organized a secret torchlight march at UVA. (Dkt. 175 at
¶143-49). These torches were supposed to invoke the Ku
Klux Klan's and Nazi's similar use of torches.
(Id. at ¶150). The marchers marched two-by-two
up the Lawn, around the Rotunda, and towards a Thomas
Jefferson statue on the far side of the Rotunda.
(Id. at ¶¶159, 164). As they marched, they
chanted various racist slogans and performed Nazi salutes.
(Id. at ¶¶161-62).
the march was supposed to be secret, approximately thirty
counter-protesters, including Plaintiffs Doe, Magill, and
Romero, reached the Jefferson statute before the marchers.
(Id. at ¶¶164, 169). The
counter-protesters linked arms and surrounded the statue,
facing away from it. (Id. at ¶164). As the
marchers rounded the Rotunda, they charged towards the statue
and surrounded the counter-protestors. (Id. at
¶¶164, 166). Fighting broke out, and the marchers
kicked and punched the counter-protesters. (Id. at
¶168). People in the crowd threw an unidentified fluid
at the counter-protesters, including on Plaintiffs Doe,
Magill, and Romero. (Id. at ¶169). These
Plaintiffs were afraid it was fuel and that they would be
burned. (Id.). Defendant Ray shouted, “The
heat here is nothing compared to what you're going to get
in the ovens!” (Id.). A photo shows Defendant
Cantwell spraying a counter-protestor with pepper spray.
Id. at 56. (Id. at ¶172). Plaintiffs
Doe and Romero felt trapped and did not believe they could
escape safely. (Id. at ¶¶173-74).
this time, Plaintiff Wispelwey and around 1, 000 others were
inside St. Paul's Church, which is located across the
street from the Rotunda. (Id. at ¶154). The
faith community at St. Paul's, including Plaintiff
Wispelwey, witnessed the marchers. (Id. at
¶178). The church leaders asked everyone to remain at
the church out of a fear of violence. (Id. at
¶180). Plaintiff Wispelwey eventually drove some
attendees to their homes and hotels. (Id. at
¶181). At one hotel, Defendant Invictus confronted
Wispelwey and aggressively asked him what he was doing at the
hotel and what church he belonged to. (Id. at
night ended with Defendants Kessler and Spencer, and others,
celebrating the evening's events and encouraging their
followers to come to the following day's rally.
(Id. at ¶184).
The rally on August 12th
all of the Defendants attended Saturday's “Unite
the Right” rally, including Defendants Kessler,
Cantwell, Mosley, Heimbach, Hill, Invictus, Ray, Spencer,
Damigo, Peinovich, Fields, Parrott, Tubbs, Nationalist Front,
League of the South, National Socialist Movement,
Traditionalist Worker Party, Vanguard America, East Coast
Knights, Loyal White Knights, Fraternal Order of Alt-Knights,
and members of The Daily Stormer's “book
clubs.” (Dkt. 175 at ¶187).
arrived in passenger vans, gathered at pre-arranged meet up
spots, and then marched towards the park. (Id. at
¶¶196, 207). They entered Emancipation Park
“in military formations, armed like paramilitary
forces.” (Id. at ¶195). Organizations
marched with matching uniforms, coordinated shields, and
regimental flags. (Id. at ¶¶197-98).
Defendant Fields, who would later drive his car into the
crowd, wore Defendant Vanguard America's uniform and
marched with other Vanguard America members. (Id. at
military formations marched into the park, they assaulted and
knocked over various counter-protestors, including Plaintiffs
Wispelwey and Romero. (Id. at ¶208). Other
counter-protesters were blockaded around the park, and rally
attendees used “shields, flags, or fists” to
break through these counter-protesters and enter the park.
(Id. at ¶209). Once in the park, the violence
escalated. According to an account of the day written by
Defendant Parrott, members of Defendants Traditionalist
Worker Party, League of the South, National Socialist
Movement, and other Nationalist Front groups, jointly created
“two shield walls” for “the fight.”
(Id. at ¶212). Defendant Identity Evropa
“were occupied on other fronts, ” but “sent
a detachment of fighters to assist us and to relay
intelligence to Jason Kessler and other organizers.”
(Id.). Defendant Tubbs ordered Defendant League of
the South members to “charge, ” and
“[a]fter receiving this command, the group streamed
past him to attack counter-protesters.” (Id.
marchers also yelled anti-Semitic and Nazi slogans while
passing Plaintiff Pearce's synagogue. (Id. at
¶202). Defendant Ray carried a banner that stated
“Gas the kikes, race war now!” (Id.). An
anonymous individual later threatened to “torch those
Jewish monsters” in a comment on a YouTube video,
leading Charlottesville's mayor to ask for police
protection for the synagogue. (Id. at ¶203).
Plaintiff Pearce and her son counter-protested the rally
outside the park. (Id. at ¶220). She wore a
Star of David and carried a rainbow flag. (Id. at
¶219). She was harassed by a rally attendee, who
shouted, “Oh good, they are marking themselves for
us.” (Id. at ¶220). Another rally
attendee threw an open bottle with a “foul
liquid” that hit Plaintiff Pearce. (Id. at
at 11:22 a.m., Charlottesville declared the gathering an
unlawful assembly. (Id. at ¶223). Defendants
Kessler, Cantwell, Ray, Schoep, and Vanguard America among
others, moved to McIntire Park. (Id. at
¶226-28). Defendant Parrott did not leave, and was
arrested for failure to disperse. (Id. at
¶228). Violence continued in McIntire Park and on
Charlottesville's downtown mall. (Id. at
The car attack on August 12th
p.m., Plaintiffs allege Defendant Fields deliberately drove
his car into a crowd of peaceful protesters that were
congregated at the intersection of Fourth Street and the
Downtown mall. (Id. at ¶242). Plaintiffs
Martin, Blair, Sines, Muñiz, Alvarado, and Romero were
all on Fourth Street when Fields drove his car into the
crowd. (Id. at ¶243). Multiple of these
Plaintiffs were struck by Defendant Fields' car and
incurred serious injuries. (Id. at
¶¶244-56). A friend of some of the Plaintiffs,
Heather Heyer, was killed. (Id. at ¶248).
Happenings after the event
the event, Defendants Anglin, Vanguard America, Kessler,
Heimbach, East Coast Knights, and Loyal White Knights posted
messages approving of the Defendant Fields's car attack.
(Dkt. 175 at ¶¶264, 266-69, 272). Defendant Schoep
said it was an honor “to stand” with the other
co-Defendants at the rally, and referred to them as
“true warriors.” (Id. at ¶271).
Defendant Spencer referred to the rally a “huge moral
victory.” (Id. at ¶273). Defendant
Cantwell was glad nobody on the Defendants'
“side” died. (Id.).
Defendants have stated they would like to return to
Charlottesville for a similar event. (Id. at
¶296). Defendant Spencer and others engaged in another
torchlight march in Charlottesville on October 7, 2017.
(Id. at ¶306). Defendant Kessler filed an
application for another rally on August 11 and 12, 2018.
(Id. at ¶307).
Count One: 42 U.S.C. § 1985(3)
Count One, Plaintiffs allege all Defendants violated 42
U.S.C. § 1985(3), which states:
If two or more persons . . . conspire . . . for the purpose
of depriving, either directly or indirectly, any person or
class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws . . . [and] if
one or more persons engaged therein do, or cause to be done,
any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or
deprived of having and exercising any right or privilege of a
citizen of the United States, the party so injured or
deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or
more of the conspirators.
specific Defendants identified in footnote one moved to
dismiss. The majority of the Section 1985(3) claims survive,
although Plaintiff Pearce's claims against these
Defendants will be dismissed, and all claims against
Defendant Peinovich will be dismissed.
must plausibly allege the following elements to state a
Section 1985(3) claim:
(1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of the
equal enjoyment of rights secured by the law to all, (4) and
which results in injury to the plaintiff as (5) a consequence
of an overt act committed by the defendants in connection
with the conspiracy.
A Soc'y Without A Name v. Virginia, 655 F.3d
342, 346 (4th Cir. 2011) (citing Simmons v. Poe, 47
F.3d 1370, 1376 (4th Cir. 1995)). Importantly, and unlike
Section 1983, Section 1985(3) reaches private conspiracies
(i.e., there is no state action requirement).
See Griffin v. Breckenridge, 403 U.S. 88, 102
order to frame a Defendant-by-Defendant analysis of the
pleadings, the Court works through these elements slightly
out of order. The Court first addresses the requisite racial
animus and purpose of the conspiracy (the second and third
elements). After laying this framework, the Court evaluates
the complaint to see if it plausibly alleges that each
Defendant joined such a conspiracy (the first element). The
Court then asks whether that conspiracy caused
Plaintiffs' alleged injuries (the fourth and fifth
elements). Finally, while Plaintiffs' overarching First
Amendment and other defenses are addressed separately at the
end of this opinion, the Court does flag specific allegations
that are not protected by that Amendment throughout the
must plead that the Defendants were “motivated by a
specific class-based, invidiously discriminatory
animus.” A Soc'y Without A Name, 655 F.3d
at 346; Francis v. Giacomelli, 588 F.3d 186, 196-97
(4th Cir. 2009) (same). No Defendant seriously disputes that
Plaintiffs have adequately alleged Defendants possessed
racial animus against black and Jewish individuals; the
complaint is replete with racist statements made and affirmed
by Defendants. However, some Defendants do argue that they
only possessed racial animus against non-white individuals,
and so they cannot be held liable by white Plaintiffs. But
Section 1985(3) was enacted “to combat the prevalent
animus against Negroes and their supporters.”
United Bhd. of Carpenters & Joiners of Am., Local
610, AFL-CIO v. Scott, 463 U.S. 825, 836 (1983)
(emphasis added). And the Supreme Court has said the statute
reaches “class-based animus” directed
“against Negroes and those who championed their
cause[.]” Id. (emphasis added). Here,
Plaintiffs have plausibly alleged that they were attacked
because of their support of non-white racial minorities, and
so this element is satisfied as to all Defendants.
Intent to deprive Plaintiffs of equal protection of rights
secured by law
addition to racial animus, the purpose of the alleged
conspiracy must be to “deprive the plaintiff of the
equal enjoyment of rights secured by the law to all.”
But importantly, “Section 1985(3) provides no
substantive rights itself; it merely provides a remedy for
violation of the rights it designates.” Great Am.
Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366,
372 (1979). And so, “[t]he rights, privileges, and
immunities that § 1985(3) vindicates must be found
elsewhere.” Scott, 463 U.S. at 833. The Fourth
Circuit has further clarified that these underlying rights
must be “rights guaranteed by federal law or the
Constitution.” Doski v. M. Goldseker Co., 539
F.2d 1326, 1333 (4th Cir. 1976).
the federal substantive right “found elsewhere”
must be “guaranteed against private impairment.”
Bray v. Alexandria Women's Health Clinic, 506
U.S. 263, 274 (1993). For example, a plot by solely private
parties to deprive individuals of their First Amendment
rights is not actionable because those rights are only
protected against public impairment (i.e.,
“Congress shall make no law . . .”). See
Scott, 463 U.S. at 833 (“[H]ere the right claimed
to have been infringed has its source in the First Amendment.
Because that Amendment restrains only official conduct, to
make out their § 1985(3) case, it was necessary for
respondents to prove that the state was somehow involved in
or affected by the conspiracy.”).
light of these limitations, the Supreme Court has noted there
are “few” rights that can support a Section
1985(3) claim. Bray, 506 U.S. at 278. The only
rights to be so recognized by the Supreme Court are
“the Thirteenth Amendment right to be free from
involuntary servitude, United States v. Kozminski,
487 U.S. 931, 942 (1988), and, in the same Thirteenth
Amendment context, the right of interstate travel, see
United States v. Guest, 383 U.S. [745, ] 759, n. 17
[(1966)].” Id.; see also Tilton v.
Richardson, 6 F.3d 683, 686-87 (10th Cir. 1993) (same).